232 P. 131 | Cal. | 1924
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *187
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *188 The defendant has appealed from an order of the superior court of the state of California, in and for the county of San Mateo, granting plaintiff's motion for a new trial, after a verdict by a jury in favor of the defendant in an action brought by the administrator to recover damages for the death of the deceased, Elizabeth G. Wilkinson, an intestate, alleged to have been caused by the negligence of the defendant in operating its interurban railroad between San Francisco and San Mateo.
The complaint alleges that the defendant corporation maintained and operated a double track suburban line between the city of San Francisco and the city of San Mateo, over the private right of way of said corporation and passing through the town of San Bruno; that on the third day of *189 July, 1920, said corporation carelessly and negligently maintained, controlled, and managed a certain station at this right of way in the vicinity of the town of San Bruno; that the negligence consisted in this, that the station was so constructed that the entrance was on the side facing the tracks and the other three sides consisted of blank walls; that the said side of the building was approximately six feet from the westerly rail of the westerly track; that in order for a passenger to board a north-bound car it was necessary to cross the westerly track and there was no opportunity to stop, look, and listen for approaching or passing cars; that the overhang of the cars was three feet; that the station was so constructed that the motorman could not observe any person approaching and desiring to board a north-bound car; and that on July 3, 1920, the deceased, Elizabeth G. Wilkinson, while in the act of crossing the westerly track near the San Bruno crossing was struck by one of the cars of defendant corporation, sustaining severe injuries from which she died. As a second cause of action it was alleged "that on and in the vicinity of the station" near the San Bruno crossing the defendant corporation displayed numerous signs bearing the words "Cars Stop Here"; that at the time and place above mentioned the defendant corporation, by its agents, servants, and employees, so negligently and carelessly maintained, operated, and controlled a south-bound car at a high and excessive rate of speed and at a rate of speed in excess of thirty-five miles an hour, failed to stop said car at the station notwithstanding the signs displayed and that such negligence and carelessness caused the injuries and death of the deceased, Elizabeth G. Wilkinson.
General and special demurrers were interposed to each count. Defendant's demurrer to the first cause of action was sustained and that to the second cause of action overruled. The answer of defendant corporation to the second cause of action set up the defense of contributory negligence as the proximate cause of the injuries sustained. A verdict for defendant corporation was rendered by the jury, upon which verdict judgment was entered for defendant. Plaintiff interposed a motion for a new trial, which was granted, and this is the appeal taken from the order granting said motion for a new trial. *190
The accident out of which the action arose occurred on July 3, 1920, in San Mateo County near the San Bruno crossing at a station or waiting-room maintained by the appellant upon its own private right of way south of the point where the Bay Shore road crosses the tracks of the United Railroads and the Southern Pacific Company. According to the testimony the station or waiting-room is 200 feet south of the San Bruno crossing and 116 feet south of the point where the Bay Shore road crosses the parallel tracks of the appellant and the Southern Pacific tracks, which are to the east of appellant's tracks. The station or waiting-room is a structure about eight feet wide and ten feet long, with three blind walls, the easterly side being open and facing the westerly rail of the tracks. At about 11 o'clock A.M. on the day above mentioned appellant's north-bound interurban car was approaching the station and was stopping to allow a passenger to alight. At this juncture, as a south-bound interurban car was approaching the station on the inside or westerly track, which was nearer the station and about ten or twelve feet from the northerly end thereof, the deceased, who had been sitting in the station, stepped from the platform intending to board the north-bound car and was instantly struck by the right corner of the bumper of the south-bound car. As a result of the injuries sustained she died some three hours later.
Respondent's notice of intention to move for a new trial was upon five grounds: (1) Insufficiency of the evidence to justify the verdict; (2) the verdict is against law; (3) error in law occurring at the trial and excepted to by the plaintiff; (4) errors in law occurring at the trial and excepted to by the plaintiff; and (5) errors in law occurring at the trial and excepted to by the plaintiff, to wit, the giving to the jury the instructions and each and every one of the instructions requested by the appellant. After the submission of the motion and hearing the argument thereon the motion for a new trial was granted.
We will at this point state the evidence bearing on the points relied upon for reversal.
James P. Walsh, who was a passenger on the north-bound car, riding in the rear end of the car on the platform and leaning through the windows nearest to the inbound track, *191 testified that his car was stopping to let him off at the station; that he could see the south-bound car coming from San Francisco before it reached the crossing, which was about 225 feet from the station; that the south-bound car, going between thirty and thirty-five miles an hour, gave no warning signals and did not stop at the station; that he saw the deceased, who was carrying a basket, about two feet in front of the "cabin," but did not see the car strike her; and that after the car passed she was lying about four feet from the westerly rail of the westerly track, between the south end of the station and a fence fourteen feet to the south thereof.
Frederick Horning, the motorman who was operating the south-bound car which struck the deceased, testified: "I first saw the lady just as she stepped out of the waiting-station. She came right out of the northwest corner of the waiting-station. My car came over the highway, and when she stepped out it was ten or twelve feet from the station. When I first saw the lady she was about three feet from the westerly rail of the westerly track. I immediately reversed my car which is commonly known as slugging and threw on the air. . . . The car was in the neighborhood of forty-five feet long, may be a little over. Has an overhang or overlap on either side of the rails of three feet. The distance from the waiting-station to the track I should say was about six feet, or about three feet between the car and the station. She stepped right into the clearance when I first saw her. She made one step which brought her in a position where the car came up to her." He also testified that he was going about fifteen miles an hour at the San Bruno crossing and that before he crossed he blew the whistle twice and rang the foot gong; that he then increased the speed "five notches" and when ten or twelve feet from the station the deceased stepped out of the station; that "she neither looked to the right or left. She had her head down and had the package in one arm and a package in the other, and never looked to the right or to the left"; that he only stopped the car if he got a signal from the conductor or unless someone was in sight to take his car; that he could not see anyone inside the station but had seen people at other times step out of the station for the purpose of getting on the car; that he was going about fifteen miles an hour and after he *192 put on the brakes the car went about sixty-five feet. The passenger above mentioned testified that the south-bound car stopped about 275 feet south of the station, and Sebastian de la Maggiora testified that when he saw the south-bound car backing up after the accident it was about 150 or 175 feet from the station. Otto Jacobsen, who qualified as an expert, judging the comparative distance interurban cars of the type used will go after the brakes are applied and the current reversed, testified that if the car traveled a distance exceeding 200 feet after the application of the air-brakes and the reversal of the motor it must have been going at a speed in excess of thirty miles an hour.
William T. Hunter, the conductor on the south-bound car, testified that the whistles were blown for the San Bruno crossing and that the speed was about fifteen miles an hour. Anna E. Finnegan, a passenger on the south-bound car, testified that she also heard the whistle at the San Bruno crossing and after it passed the crossing she saw "a lady walk out and then I heard some little rumbling noise." Frederick W. Webb, the motorman on the north-bound car, which stopped at the station, testified that as the front end of his car was passing the station he noticed a lady was standing at the inside of the station, that she started to pick up some packages on the bench; that his attention was attracted to the south-bound car by the whistle sounded before it reached the San Bruno crossing, and that the speed was possibly eighteen miles an hour. Lewis Eugene Jones, the conductor on the north-bound car, testified that he had signaled his motorman to stop at the station to allow a passenger to alight; that just as the car was in the act of coming to a complete stop this passenger stepped off and just as he stepped off he noticed the other car and the deceased at the same time, and that she was just in the act of stepping out of the station when the south-bound car came into view.
1. As to the first ground of the motion for a new trial that the evidence is insufficient to sustain the verdict, it is sufficient to say that since the order granting the new trial was a general one and did not specify that it was granted on the ground that the evidence was insufficient to justify and sustain the verdict, it must be presumed on this appeal *193 that the order was not based on that ground. (Sec. 657, Code Civ. Proc.)
2. This ground is that the verdict is against law. When a case is tried by a jury, and the sufficiency of the evidence is not involved, it is only when the verdict is contrary to or in conflict with the instructions given the jury by the court that the verdict is "against law" in order to be a ground for a motion for a new trial. (Brumagim v. Bradshaw,
3. The third, fourth, and fifth specifications of error in the motion for a new trial involve certain instructions given to the jury at the request of appellant. The instructions read as follows:
"VII. I instruct you that the tracks of a street railway company are in themselves a sign of danger, and one who approaches same must exercise his faculties of sight and hearing to wait and listen for cars, and his failure to so act is negligence.
"VIII. It was the duty of . . . deceased before approaching the street car track of the United Railroads, at or about the point where the collision occurred, to make reasonable use of her faculties of sight and hearing to watch and listen for approaching cars.
"X. I instruct you that it was the duty of . . . deceased, before approaching the street car track in question, to make reasonable use of her faculties of sight and hearing to watch and listen for cars going in either direction. Any failure on her part to perform this duty constitutes negligence.
"XI. I instruct you that the street car track of an interurban railway is a sign of danger, and it is the duty of all persons on approaching or attempting to cross such track to exercise ordinary care to save themselves from a collision with any approaching car. Any failure to perform this duty constitutes negligence.
"XII. I instruct you that it is the duty of a person approaching a railroad track to use ordinary care in selecting a time and place to look and listen for coming cars, and she should stop for the purpose of making such observations when necessary. *194
"XIII. A person who is about to cross a railroad track at a place where ordinarily the motorman gives appropriate signals of the approaching of cars, may not depend upon such custom or evenupon a duty enjoined by law to give such signals; she has no right not to look or listen because she has heard no such signals.
"XIV. The railroad track of an interurban railway must itself be regarded as a sign of danger, and one intending to cross must avail herself of every opportunity to look and to listen for approaching cars. What she must do in such a case will depend upon circumstances. If the view of the track is obstructed she must take great pains to listen. If taking these precautions shewould have seen or heard the approaching car, the very fact ofinjury will justify the inference and conclusion that she did nottake the required precautions. . . .
"XVIII. I instruct you that the person in charge of a car with a clear track before him has a right to assume that people will not suddenly undertake to cross in front of it. . . .
"XX. Where the alleged negligence of the motorman consists of the alleged omission of duty suddenly and unexpectedly arising, such as a person stepping suddenly upon the track of the approaching car without warning, it is incumbent upon the plaintiff to show that the circumstances were such that the motorman had an opportunity to become conscious of the facts giving rise to the duty and reasonable opportunity to perform it, before the railroad company can be held liable on the ground of negligence.
"XXI. . . . If, therefore, you find that at the time deceased was approaching the track upon which the street car was approaching, she was entering into a place of great and imminent danger and had the burden resting upon her to use ordinary care to save herself from injury, I instruct you that you can take such facts into consideration in determining what actual amount of care it was necessary for her to exercise in such circumstances in order to meet the legal requirement of ordinary care. And if she did not exercise sufficient care under the then existing circumstances to constitute such ordinary care, and solely in consequence thereof the heirs of said deceased suffered the damages complained *195 of, I instruct you that the plaintiff cannot recover and your verdict must be in favor of the United Railroads of San Francisco.
"XXII. The court instructs you that at the place where this accident is shown to have occurred there was no law regulating the speed of cars. The defendant had a right to propel its carsat any rate of speed which was consistent with due care in the business of railroading."
The trial court filed an opinion in connection with the order granting a new trial, which opinion appears in the bill of exceptions. (See 2 Cal. Jur. 488.) The opinion states that "the court undoubtedly by its instructions required more than ordinary care of deceased. For instance, it charged that she `must avail herself of every opportunity to look and listen . . .,' and that `she must take great pains to listen.' Whereas her duty was simply to use ordinary (reasonable) care; and whether she exercised such in that and every other respect was for the jury. Moreover the court instructed as to inference and conclusion to be drawn by the jury from supposed facts, an unwarranted invasion of its province. The court also charged that a person may not rely on a custom or duty of the motorman to signal. It would seem the decisions are not quite in harmony in respect to such reliance . . . but certainly it must be left to the jury to determine whether the dependence of the person on such custom or duty was, under the circumstances, an omission to do something he (she here) ought to have done. Such instruction was as to matter of fact as well as argumentative. Aside from consideration of the proximity of the station house or shed to the tracks and consequent exceedingly narrow clearance which might have contributed to the confusion or oversight of deceased leading to her injury and death, the court is not satisfied with the verdict reached under the instructions given, and accordingly such verdict is set aside and a new trial granted."
We have italicized a portion of instruction XIV as being open to the criticism that it invades the province of the jury. The portion of instruction XIII which we have italicized is similarly objectionable and is also incorrect in what it declares as to signals. Instruction XXII does not correctly state the law as to the duty of the common carrier with respect to the speed of its cars. We shall next *196 discuss the instructions to the effect that the deceased was guilty of contributory negligence if she did not stop, look, and listen on leaving the station. The instructions as contended by respondent embody the "stop, look, and listen" rule and also require the deceased to exercise every degree of care as distinguished from ordinary care. Respondent contends that this rule of law is applicable only to steam railways and not to electric interurban railways. It is conceded by appellant that the rules governing the care required of a pedestrian applicable in the cases of a street railway in a city and in cases where a steam railroad is involved are different in that the quantum of care required in the former case is less than in the case of the latter. But appellant contends that an electric interurban railway operating over a private right of way comes within the rules applicable to steam railroads and not those applicable to street-cars. The respective briefs of the parties devote considerable space to this point on the theory that upon its determination the correctness of the instructions must depend. We do not think this is the decisive point on the appeal for the reason that if it be assumed the principle of stop, look, and listen applies as well to the operation of interurban as to steam railroads, this is not a case in which the failure to stop, look, and listen is negligence per se. Briefly stated, the rule of stop, look, and listen is that a traveler approaching a railroad crossing must stop, look, and listen (3 Elliott on Railroads, 3d ed., sec. 1661), but if there is reasonable cause to believe there is no danger, it is not negligence per se not to stop, look, or listen (1 Shearman Redfield on Negligence, 6th ed., sec. 90).
There are two reasons for the conclusion that the deceased in this case was not required to stop, look, and listen before she attempted to board the car and, therefore, the instructions were erroneous. In the first place, the accident occurred at the usual stopping place of the cars and, hence, the appellant was required to exercise a higher degree of care than, for instance, at a crossing, or between points, even on a private right of way. And in the second place the rule applicable to stations does not require the passenger, who is lawfully on the premises, to stop, look, and listen before approaching intervening tracks to board a train. The duty to stop, look, and listen is not an absolute *197 one, but one the exercise of which is dependent on conditions. "The circumstances which will excuse failure to look and listen usually arise, first, where by looking and listening, the consequences of the defendant's negligence would not have been avoided; second, in the presence of some imminent danger or emergency sufficient to divert the attention of a person of reasonable fortitude and self-possession; third, where one has entered on the crossing under an express or implied invitation of the company's employees giving reasonable assurance of safety. The last instance more usually occurs at stations where a way has been left open by the company across other tracks for an approach to the station or train. . . ." (22 R.C.L. 1035, 1036.)
It seems clear that the inclosure and adjoining area in this case come within the meaning of a "station" as that term is employed in the authorities. It was said in Fernette v. PereMarquette R. Co.,
Appellant's answer denied the allegation of the complaint that a sign "Cars Stop Here" was on or near the station and in the oral argument counsel for respondent stated that evidence was offered under the issue, but that it was not admitted.
We have found no authority which in principle draws any distinction between the relative degrees of care of the common carrier and the passenger at the various kinds of stopping places where passengers are received or discharged. Discussing the degree of care due to persons using stations and the surrounding premises, it is said in 1 Thompson on Negligence, section 1006, pages 922, 923: "Wherever passengers are accustomed to be received upon a train, whether at a station-house or at a water-tank outside of the station, or elsewhere, railroad companies are bound to keep in safe condition for transit, the ordinary space in which passengers go to and from the train, and the latter have the right to assume that the ground adjacent to the cars, within the limits of which persons necessarily and naturally go to and from them, admits of their getting safely out and in. . . ." The law is well settled concerning the application of the rule of "stop, look, and listen" in cases where accidents occur in crossing over intervening tracks at stations or depots. In all cases where it is absolutely necessary, inconvenient to do otherwise, or is the customary practice, acquiesced in by the common carrier of passengers, to cross tracks at stations, the mere crossing of the tracks by a passenger on his way to or from a train raises no presumption of negligence against him. And where a passenger is required to cross the company's intervening tracks in order to take his train or to leave it, or to change from one train to another, it is not negligence per se not to stop, look, and listen for approaching trains before so crossing. (2 Shearman Redfield on Negligence, *199
6th ed., sec. 525, n. 534, and cases cited.) In 3 Thompson on Negligence, section 2701, page 170, it is said: "It is almost needless to add that this duty of providing safe approaches to its stations extends to the obligation of taking care in movingits trains so as not to injure passengers who are obliged to cross its track or tracks. . . . On the other hand, passengers who are obliged, in boarding a train or in leaving it, to cross railroad tracks intervening between the train and the station, have the right to assume that the company will so regulate the movement of its trains on such tracks as to enable them to cross the tracks in safety." Thompson, supra, section 2705, page 175, further states "that the passenger, while not absolved from the duty of exercising care for his own safety, has the right topresume that the tracks intervening between the places where he is obliged to alight and the station will be kept safe while he is crossing; so that the mere fact that he fails to look and listen for an approaching train before attempting to cross, will not necessarily be ascribed to his contributory negligence, and will not prevent a recovery of damages if he is struck by such a train." It was held in the following cases that the rule of stop, look, and listen does not apply as matter of law to passengers at stations and that the issue should be submitted to the jury:Sonier v. Boston etc. R. Co.,
We have assumed there is no difference in principle in the operation of steam and interurban trains; and we perceive no reason why the "operation" of trains with relation to stations would not be the same in both modes of service. Again, we have found no authority which draws any distinction as to the relative degree of care of common carriers and passengers at the stations of a steam railroad and of an interurban railway. 3 Elliott on Railroads, third edition, section 1519, says: "Interurban railroad companies, as carriers of passengers, owe to their passengers the duty of exercising the same high degree of care required of other carriers of passengers." Karr v. MilwaukeeLight, Heat Traction Co.,
We do not think that the deceased was, as matter of law, required to stop, look, and listen before she stepped from the station. The instructions were, therefore, erroneous. It follows that the question of the proximate cause of the accident should have been submitted to the jury under proper instructions.
Two cases relied upon for the conclusion that the deceased in failing to stop, look, and listen was guilty of contributory negligence as a matter of law are distinguishable *202
on the facts. In the first case, Klusman v. Pacific ElectricRy. Co.,
This brings us to consider appellant's contention that the instructions complained of were proper under the circumstances of the case as shown by the testimony, to which attention is directed, and, further, that if any errors occurred in said instructions, such instructions, nevertheless, were more favorable to respondent than the law warranted, because, under the facts in evidence, the trial court should have directed the jury to bring in a verdict for appellant. Appellant also maintains that its motion for nonsuit made at the close of respondent's case should have been granted, and, therefore, any error in instructions thereafter given would not constitute prejudicial error.
The first or preliminary question is whether upon the testimony we have set out the trial court should have granted appellant's motion for a nonsuit at the close of respondent's case, and the second question is whether the trial court should have directed the jury to render a verdict for appellant on the ground that respondent was guilty of contributory negligence as matter of law.
We think the motion for nonsuit was properly denied. The testimony we have summarized was sufficient upon which to base a verdict that the negligence of appellant was the proximate cause of the accident, and the question should, therefore, have been submitted to the jury. (Scott v. San Bernardino etc. Co.,
On the question whether the court should have directed a verdict for appellant it has been held "that the court may direct a verdict for the defendant where the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial discretion, will be compelled to set aside a verdict returned in opposition to it." (Davis v. CaliforniaStreet C.R.R. Co.,
When the appellant undertook to establish on its own property a station and station grounds at the point in question it became charged with the duty of providing such accommodations as would afford safety and protection to its passengers in the use thereof. (See Green v. South San Francisco etc. Co.,
The motion for a new trial was properly granted.
Order affirmed.
Richards, J., Shenk, J., and Seawell, J., concurred.
Dissenting Opinion
I dissent. Conceding that some of the instructions given were erroneous and that the error was prejudicial, the consideration of this appeal is reduced to the single question, "Was the evidence herein legally sufficient to support a verdict in favor of plaintiff?" If it was the trial court was justified in granting the new trial and the order should be affirmed. If it was not the trial court should have directed a verdict for the defendant, and any error in the instructions would, therefore, be immaterial and would not justify the granting of a motion for new trial. It is my conclusion that the undisputed evidence herein shows the decedent to have been guilty of contributory negligence as a matter of law and that for this reason the order granting the new trial should be reversed. I do not predicate this conclusion in the least upon the so-called "stop, look, and listen rule," which is discussed at length in the prevailing opinion. To my mind that rule is a false quantity in this case, and I am willing to concede at the outset that it has no application herein.
I recognize the existence of the so-called "railroad station rule" and that its effect, when applicable, is to increase thequantum of care required of the railroad company, and to correspondingly decrease the quantum of care required of the passenger, but I question the applicability of this rule to the situation here under consideration. It is to my mind a misnomer to speak of the building referred to in the testimony herein as a "railroad station." It consisted solely of *206
three walls and a roof. It was nothing more than a shelter where intending passengers and others might seek protection from the weather. It seems inaccurate to speak of this as "the usual stopping place of the cars." It is shown by the undisputed testimony that cars stop here only on signal from a passenger desiring to alight or from an intending passenger desiring to board a car, and that decedent had given no signal or intimation of her intention to board a car. It is alleged in the complaint herein and denied in the answer that there was at the place of the accident a sign reading "Cars Stop Here." There is no evidence in the record tending to prove this allegation and it must, therefore, be taken to be untrue. I agree that it is not necessary in order to constitute a station that it should have baggageroom, ticket offices, company employees, etc., and concur in the definition approved in the prevailing opinion "that the word `station' would cover any place where trains usually and ordinarily stop." It seems clear to me that this is the broadest and most inclusive definition which can justly be used in considering the applicability of the "railroad station rule" as affecting the quantum of care to be exercised by railroad companies and their passengers. This must be so because the foundational reason for the "railroad station rule," which requires greater care from the railroad company and less from the passengers, rests upon the very fact that trains usually stop there, and that passengers are entitled to rely to some extent upon that custom. The place where this accident occurred was not such a place. It is true that the supreme court of Arkansas, inDaniel v. Doyle,
The facts disclosed by the undisputed testimony are that there was a space of six feet between the "station" and the nearest railroad track, leaving a clear space of at least three feet between the "station" and the overhang of the car; that the decedent proceeded from a position of safety across the intervening clear space immediately in front of the oncoming car and so close thereto as to be unavoidably struck thereby, without either looking or listening, and that if she *207
had looked she could not have failed to see, and if she had listened she could not have failed to hear the approaching car. As was said by this court in the case of Kauffman v. MachinShirt Co.,
Lennon, J., and Waste, J., concurred.
Rehearing denied.
Myers, C.J., Lennon, J., and Waste, J., dissent from the order denying a rehearing.